Florida’s Impact Rule at its Worst

A Funeral Home Lost the Remains of a Miscarried Baby – The Parents Were Ordered to Pay the Funeral Home’s Attorney’s Fees

By: Brett J. Yonon, Esq.

In 2020, the Fourth District Court of Appeal handed down a decision that should bother everyone. Williams v. Boyd-Panciera Family Funeral Care, Inc., 293 So. 3d 499 (Fla. 4th DCA 2020), involved a funeral home that admittedly lost the cremated remains of a miscarried baby. The parents sued for their emotional distress and lost. Not because a jury decided their pain wasn’t real or that the funeral home did nothing wrong, but because the case never even saw a jury due to Florida’s “Impact Rule.”

According to the court record, the funeral home’s employees failed to follow protocol for tracking cremated remains upon receipt from the crematorium. That failure caused the remains of the baby to be lost. The parents brought a claim for simple negligence (i.e., carelessness) and a separate claim alleging the funeral home’s conduct was willful, wanton, malicious, or outrageous. The trial court granted a summary judgment for the funeral home on every count of the Complaint, effectively dismissing the case. The Court’s reasoning: the parents suffered no physical impact and no physical manifestation of their emotional distress, so the negligence claim was barred as a matter of law. That’s the Impact Rule. At the same time, the judge (not jury) also found the funeral home’s carelessness, however awful, did not rise to the level the law demands for willful, wanton, malicious, or outrageous behavior in order to avoid the need for evidence of an “impact.”

The Impact Rule, and Why It Failed This Family

Florida’s impact rule requires that emotional distress damages coincide with an actual physical impact to the person, regardless of how trivial, to maintain a claim for negligence. Here is an illustration:

Scenario A – You are asleep on the living room couch of a home you rent. You have been complaining to your landlord about ceiling discoloration for weeks. Then the ceiling collapses and a piece of drywall falls and clips your shoulder just enough to leave a scratch. You develop crippling insomnia and anxiety for years afterward. Because you were “impacted” by the drywall, Florida law will allow you to sue your landlord under a simple theory of negligence.

Scenario B – You are asleep on the living room couch of a home you rent. You have been complaining to your landlord about ceiling discoloration for weeks. Then the ceiling collapses and a piece of drywall falls 10 inches away from you leaving no scratch. You develop crippling insomnia and anxiety for years afterward. Because you were NOT “impacted” by the drywall, Florida courts will dismiss your negligence case and you will collect nothing, that is unless you can prove the landlord acted (or failed to act) with malice.

The Fourth District’s opinion in Williams called the facts of the case “undoubtedly troubling and heartrending,” before ultimately affirming the summary dismissal because simple negligence, even negligence that results in irreversible loss of a child’s remains, doesn’t clear the bar the impact rule sets. Ordinary carelessness isn’t enough. It has to be malice, or willful and wanton conduct, or something “outrageous.” As a thought exercise, if the 4th DCA found that losing the cremated remains of a miscarried baby was not extreme or outrageous or malicious, imagine how it might react to an emotional harm claim against a lazy landlord or careless roofer.

The Real Problem

Shouldn’t the standard be whether a family whose baby’s remains were permanently lost because an institution didn’t follow its own procedures suffered real, foreseeable, compensable harm? This is what’s wrong with a rigid impact rule in cases like Williams: it forces courts to ask the wrong question. Other jurisdictions handle negligent loss or mishandling of remains differently, precisely because they recognize that this is exactly the kind of case where the foreseeability of emotional harm is obvious and there is little utility to finding an “impact.” Florida’s own Supreme Court has said the impact rule is not “an inflexible, unyielding rule of law, so sacred that it must be blindly followed without regard to context.” Rowell v. Holt, 850 So. 2d 474, 478 (Fla. 2003). Yet, here we are; case dismissed.

From the Trial Court to a Denied Cert Petition

What makes the Williams case particularly frustrating is how it moved through the system. The trial court applied the rule accurately yet mechanically. The Fourth District, bound by bad precedent and unwilling to chart a better path through recognizing a new, limited exception, followed suit. And when the case reached the Florida Supreme Court, review was denied. No published opinion. No clarification. Just a closed door, and a family left with nothing but a court order requiring them to pay the attorney’s fees of the very funeral home that lost their baby’s remains.

For every family that walks into a funeral home trusting that their loved one’s remains will be handled with basic competence, Florida law currently offers very little recourse if that trust is broken through carelessness or negligence.

That’s a gap in the law worth fixing. This is one of many reasons it is always best to consult an experienced, competent attorney to help navigate the uneven playing field of funeral home neglect.

This post reflects the author’s views on Williams v. Boyd-Panciera Family Funeral Care, Inc., 293 So. 3d 499 (Fla. 4th DCA 2020), and is offered for general commentary, not as legal advice.